Angela Williams v NHC Disability Services Pty Ltd [2023] FWC 2519

1 Fair Work Act 2009 s.365 - Application to deal with contraventions involving dismissal Angela Williams v NHC Disability Services Pty Ltd (C2023/3312) COMMISSIONER P RYAN SYDNEY, 29 SEPTEMBER 2023 Introduction [1] This decision concerns an application by Ms Angela Williams (Ms Williams/Applicant) for the Fair Work Commission (Commission) to deal with a dismissal dispute pursuant to s.365 of the Fair Work Act 2009 (FW Act) (Application). [2] In the Application, Ms Williams stated her employment with NHC Disability Services Pty Ltd (Respondent) commenced on 6 December 2022 and that her dismissal took effect from 17 May 2023. The Application was made at 12:20am on 8 June 2023. [3] Section 366 (1) of the FW Act states that an application for the Commission to deal with a dismissal dispute must be made ‘within 21 days after the dismissal took effect’, or within such further period as the Commission allows pursuant to s.366(2). The Application was therefore made 20 minutes outside the 21 day period. The Applicant asks the Commission to grant a further period for the Application to be made under s.366(2). [4] The matter was allocated to my Chambers to determine whether an extension of time should be granted under s.366(2). [5] In accordance with directions issued by the Commission, both parties were given an opportunity to file materials in support of, or in opposition to, the Applicant’s application for an extension of time. [6] The matter was heard on 1 August 2023. I exercised my discretion to grant permission to the Respondent to be represented by a lawyer, as I was satisfied as to the matters set out in s.596(2)(a) of the FW Act. The Applicant was self-represented. The Respondent was represented by Mr E Patakas. [7] The following witness statements and documents were admitted into evidence: Exhibit No. Description [2023] FWC 2519 DECISION -- 1 of 7 -- [2023] FWC 2519 2 1 Annexures to Form F8 Application. 2 Email from E. Patakas to FWC dated 30 June 2023 in matter C2023/3268. 3 Statutory Declaration of Charlotte Bruce-Goodlet dated 28 July 2023. 4 Email from Applicant to E. Patakas dated 22 May 2023. 5 Email from Applicant to E. Patakas dated 26 May 2023. [8] For the reasons that follow, I decline an extension of time under s.366(2). Exceptional Circumstances [9] The FW Act allows the Commission to extend the period within which an application for the Commission to deal with a dismissal dispute must be made only if it is satisfied that there are ‘exceptional circumstances’. Briefly, exceptional circumstances are circumstances that are out of the ordinary course, unusual, special or uncommon but the circumstances themselves do not need to be unique nor unprecedented, nor even very rare.1 Exceptional circumstances may include a single exceptional matter, a combination of exceptional factors, or a combination of ordinary factors which, although individually of no particular significance, when taken together can be considered exceptional.2 [10] The requirement that there be exceptional circumstances before time can be extended under s.366(2) contrasts with the broad discretion conferred on the Commission under s.185(3) to extend the 14 day period within which an enterprise agreement must be lodged, which is exercisable simply if in all the circumstances the Commission considers that it is ‘fair’ to do so. [11] Section 366(2) requires that, in considering whether to grant an extension of time, the Commission must take into account the following: (a) the reason for the delay; (b) any action taken by the person to dispute the dismissal; (c) prejudice to the employer (including prejudice caused by the delay); (d) the merits of the application; and (e) fairness as between the person and other persons in a similar position. [12] The requirement that these matters be taken into account means that each matter must be considered and given appropriate weight in assessing whether there are exceptional circumstances. -- 2 of 7 -- [2023] FWC 2519 3 [13] The test of ‘exceptional circumstances’ establishes a ‘high hurdle’ for an applicant seeking an extension of time to file an application for the Commission to deal with a dismissal dispute.3 [14] I now consider these matters in the context of the Application. s.366(2)(a) – Reason for the delay [15] The FW Act does not specify what reason for delay might tell in favour of granting an extension, however decisions of the Commission have referred to an acceptable or reasonable explanation. The absence of any explanation for any part of the delay will usually weigh against an applicant in the assessment of whether there are exceptional circumstances, and a credible explanation for the entirety of the delay will usually weigh in an applicant’s favour, however all of the circumstances must be considered.4 Reason for the delay – Background [16] On 17 May 2023, the Respondent terminated the employment of the Applicant and Ms Charlotte Bruce-Goodlet. [17] On 18 May 2023, the Applicant and Ms Goodlet contacted the Commission to enquire whether they could make a general protections application involving dismissal. Ms Goodlet stated that her and the Applicant were aware that they could not make an application for an unfair dismissal remedy because the Respondent is a small business employer and they had not completed a period of employment of at least 12 months. [18] After receiving confirmation that they could make a general protections application involving dismissal and that they had a 21 day time limit to lodge an application, they immediately commenced preparing their respective applications. [19] On 6 June 2023, Ms Bruce-Goodlet made a general protections application involving dismissal, which was filed within 21 days of her dismissal and allocated matter number C2023/3268. [20] On 7 June 2023, Ms Bruce-Goodlet stated that she went to the Applicant’s home, which is located in the Sutherland Shire, to assist her in finalising and lodging the Application. The Applicant and Ms Bruce-Goodlet were working on Ms Bruce-Goodlet’s laptop computer. [21] At around 10:30pm, they observed that the laptop computer was running out of battery power and they did not have access to a compatible charger, as Ms Bruce-Goodlet had left her laptop charger at her home. Before they were able to complete and lodge the Application, the laptop computer ran out of battery power and shut down. [22] The Applicant and Ms Bruce-Goodlet then decided to travel to the home of Ms Bruce- Goodlet which is located on the Balmain peninsula. It took them approximately 45 minutes to travel there, arriving at around 11:15pm. -- 3 of 7 -- [2023] FWC 2519 4 [23] Ms Bruce-Goodlet stated that she proceeded to assist the Applicant to complete the Application and annexures. At around 11:46pm the Applicant attempted to lodge the Application through the Commission’s Online Lodgement Service (OLS). As the Applicant was submitting details, the system ‘buffered’ and despite multiple attempts the system kept ‘buffering’. [24] Ms Bruce-Goodlet stated that at approximately 12:10am on 8 June 2023, the OLS ‘loaded’ and the Applicant was able to submit the Application. Ms Bruce-Goodlet stated that she then ‘took over’ the laptop and edited the Application to reflect that it was no longer filed within 21 days and resubmitted the Application at 12:20am. [25] The Applicant relies solely on the technical issues associated with the Commission’s OLS as the reason for the delay. Reason for the delay - Consideration [26] I do not accept the Applicant has an acceptable or reasonable explanation for the delay for the following reasons. [27] First, where an applicant is seeking to establish exceptional circumstances on the basis of technical difficulties in lodging an application before the Commission, that party will bear the evidentiary onus to adduce evidence of the nature and extent of those difficulties.5 [28] In Giles v Coal Train Australia Pty Ltd,6 Deputy President Asbury (as the Vice President then was) stated: [38] Notwithstanding this I accept that an Applicant seeking to establish exceptional circumstances on the basis of technical difficulties associated with lodging the application, is required to provide evidence to establish the nature and the impact of those difficulties. At very least, an Applicant assertion such difficulties should provide evidence about when attempts were made and what those attempts consisted of including documentary evidence where it is available. For example, in Arch v Insurance Australia Group Services Pty Limited there was evidence of technical issue associated with a maintenance closure of the Commission’s portal at or around the time that the Applicant established that he was attempting to lodge his application. The Applicant provided sufficient evidence of the time at which his attempts were made including copies of a partially completed application sufficient to establish that he did attempt to lodge it a time when he reasonably believed that the Commission’s portal was not functioning and that this was the only way to lodge his application. [39] In the present case there is insufficient evidence about the attempts made by the Applicant to file her material and when she made those attempts. The incomplete application, while being validly made, does not contain information to enable conclusion to be reached or inference to be drawn as to when it was prepared, to support the Applicant’s assertions that she attempted to lodge it on 23 or 24 January 2020. As a result, there is no credible explanation for the delay in lodging the application. The lack of a credible explanation for the delay in filing the application is a matter that weighs -- 4 of 7 -- [2023] FWC 2519 5 against the exercise of the discretion to grant a further period for the application to be made. [29] In this case, the Applicant has not provided any evidence of the alleged technical issues beyond what Ms Bruce-Goodlet says she observed. Importantly, there was no evidence of the application purportedly completed for lodgement at 11:46pm and lodged at 12:10am, nor was there any evidence of screen shots of the ‘buffering’ which is alleged to have occurred for a period of approximately 24 minutes. [30] Second, ‘buffering’ is commonly caused by slow internet speeds/low band width and/or a high level of activity within a particular network. This would point to the cause of any technical issues being Ms Bruce-Goodlet’s laptop, internet connection or internet service provider (or a combination of those) rather than the Commission’s OLS. At this point it is relevant to note that in response to enquiries made with the Commission’s administration, my Chambers have been informed that there were no reported outages of the Commission’s OLS over the relevant period, and over the relevant period other persons were able to register and lodge applications through the Commission’s OLS. [31] Third, during the proceedings, the Applicant confirmed she had her own computer that she uses to run her own business. In response to being asked why she did not use that computer to lodge the Application on the evening of 7 June 2023, the Applicant stated that she suffered from vertigo and looking at computer screens has a debilitating effect upon her. While the Applicant has not provided any medical evidence in support of that contention, and does not rely on medical incapacity as a reason for the delay, I found this response to be unsatisfactory for the following reasons: (i) It is inconsistent with the evidence of Ms Bruce-Goodlet, who stated that they both worked on the Application and annexures and that she observed the Applicant attempting to lodge the Application before she ‘took over’ the computer; and (ii) The Applicant has not satisfactorily explained why she could not have used her own computer that was apparently available to her in circumstances where the known deadline was looming. [32] The test of ‘exceptional circumstances’ establishes a ‘high hurdle’. The Applicant has not adduced sufficient evidence to satisfy me that there were technical issues preventing the filing of the application within the prescribed time limit. Reason for the delay – conclusion [33] For the reasons set out above, I do not consider the Applicant has an acceptable or reasonable explanation for the delay. The absence of an acceptable explanation weighs against a conclusion that there are exceptional circumstances. s.366(2)(b) – Action taken to dispute the dismissal -- 5 of 7 -- [2023] FWC 2519 6 [34] It is clear in the email correspondence sent by the Applicant on 22 May 2023 that she disputes her dismissal.7 This circumstance weighs in favour of a conclusion that there are exceptional circumstances. s.366(2)(c) – Prejudice to the employer [35] Neither party submitted that the Respondent would be prejudiced, and I cannot identify any prejudice that would accrue to the Respondent, if an extension of time were to be granted. However, the mere absence of prejudice is not in my view a factor that would point in favour of the grant of extension of time. I consider this to be a neutral consideration. s.366(2)(d) – Merits of the Application [36] The FW Act requires me to take into account the merits of the Application in considering whether to grant an extension of time. The competing contentions of the parties in relation to the merits of the Application are set out in the filed materials. [37] It is evident to me that the merits of the Application turn on contested points of fact which would need to be tested if an extension of time were granted and the matter were to proceed. It is not possible to make any firm or detailed assessment of the merits. I consider the merits to be a neutral consideration. s.366(2)(e) – Fairness as between the person and other persons in a similar position [38] Neither party brought to my attention any relevant matter concerning this consideration and I am unaware of any relevant matter. I consider this to be a neutral consideration. Conclusion [39] The test of ‘exceptional circumstances’ establishes a ‘high hurdle’. Having regard to the matters I am required to take into account under s.366(2), and all of the matters raised by the Applicant, I am not satisfied that there are exceptional circumstances. [40] Because I am not satisfied that there are exceptional circumstances, there is no basis for me to allow an extension of time. I decline to grant an extension of time under s.366(2). [41] Accordingly, the Application must be dismissed. An order to that effect will be issued with this decision. COMMISSIONER -- 6 of 7 -- [2023] FWC 2519 7 Appearances: A. Williams, Applicant. E. Patakas, Solicitor for the Respondent. Hearing details: 2023. Sydney (via Microsoft Teams video-link): 1 August. Printed by authority of the Commonwealth Government Printer <PR766707> 1 Nulty v Blue Star Group Pty Ltd [2011] FWAFB 975 at [13]. 2 Ibid. 3 Lombardo v Commonwealth of Australia as represented by the Department of Education, Employment and Workplace Relations [2014] FWCFB 2288 at [21]. 4 Stogiannidis v Victorian Frozen Foods Distributors Pty Ltd [2018] FWCFB 901 at [39]. 5 Advanced Health Invest Pty Ltd T/A Mastery Dental Clinic v Mei Chan [2019] FWCFB 5104 at [43]. 6 [2020] FWC 2274 at [38]-[39]. 7 Exhibit 4. -- 7 of 7 --